Indian welfare law can’t be ‘trump card’ to block adoption, Supreme Court rules

In Tuesday’s majority ruling, Justice Alito said ICWA’s provisions to prevent the breakup of an Indian family do not apply when “the relevant parent” abandoned the Indian child before birth and “never had custody of the child.”

Moreover, no one — other than the adoptive couple — stepped up to adopt the child, it said.

Associate Justice Sonia Sotomayor dissented, saying that the majority’s “hollow literalism” brought it to a wrong and painful conclusion

“Baby Girl has now resided with her father for 18 months….It will be equally devastating if, at the age of 3 1/2, she is again removed from her home and sent to live halfway across the county,” she wrote in a dissent joined by Associate Justices Ruth Bader Ginsburg, Elena Kagan and Antonin Scalia. Justice Scalia also wrote a separate dissent about the importance of parental rights.

Unwed birth

In the fall of 2008, Mr. Brown and Ms. Maldonado, a mother of two who is not an Indian, became engaged in Oklahoma.

When she told him in January 2009 that she was pregnant, Mr. Brown asked to have their wedding soon, since he didn’t want to support the baby unless they were married. However, the couple lived several hours away from each other, and over time, the relationship deteriorated. In May 2009, Ms. Maldonado ended the engagement.

“In June, Birth Mother sent Biological Father a text message asking if he would rather pay child support or relinquish his parental rights. Biological Father responded via text message that he relinquished his rights,” the majority ruling said.

Ms. Maldonado decided to place the baby for adoption, and had her attorney contact the Cherokee Nation to see if Mr. Brown was enrolled. However, due to incorrect information provided for him, Mr. Brown’s membership could not be verified.

Ms. Maldonado then went through a private adoption agency and found the Capobiancos, who supported her emotionally and financially through the pregnancy and were present at the baby’s birth in September 2009. They took the baby home with them as they proceeded with the adoption, staying in touch with Ms. Maldonado as she wanted.

Four months after the baby’s birth, Ms. Maldonado had papers served to Mr. Brown that said, as the biological father, he would not contest the adoption. He signed the papers, saying later he thought they permitted Ms. Maldonado to have full parental rights while he was overseas serving a military tour of duty.

But shortly thereafter, when he realized the child was being adopted by another family, he filed a stay of the adoption proceedings and focused on establishing his paternity and support for the child.

In 2011, a South Carolina family court ruled in Mr. Brown’s favor, blocking the adoption because of ICWA. In December 2011, Mr. Brown took custody of the child, who was 27 months old and had never met him before.

The adoptive parents appealed to the South Carolina Supreme Court, but it also ruled in favor of the father, again citing ICWA. The couple appealed to the U.S. Supreme Court.

The high court noted Tuesday that had the child not been 1.2 percent Cherokee, “Biological Father would have had no right to object to her adoption under South Carolina law.”

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About the Author

Cheryl Wetzstein covers family and social issues as a national reporter for The Washington Times. She has been a reporter for three decades, working in New York City and Washington, D.C. Since joining The Washington Times in 1985, she has been a features writer, environmental and consumer affairs reporter, and assistant business editor.